The penal system is of paramount importance as a result of its direct impact not only on the rights, freedom, dignity, and physical and mental welfare of citizens, but also on the security, progression and development of society.
Any penal policy must take equal account of both the rights of the citizen and the higher interest of society. The current penal policy in Syria neglects the primary purpose of punishment, which is two-fold: rehabilitation and deterrence.
The weakening of the independence of the judiciary, the reinforcing of the immunity of security agencies and the misguided penal policy – together with the concomitant violation of citizens' dignity and the increasing sense of injustice – have played the largest part in the outbreak of the Syrian revolution. Drastic measures must be taken at the political, legislative and practical levels, with a particular focus on the eradication of legal provisions which violate freedoms and human rights. Moreover, pertinent legislation must be enacted which recognises the importance of reinforcing oversight of the observance and application of such laws.
One of the priorities of the transitional period will be to uphold international law and to formulate penal policies and legislation that complies with the international conventions on human rights. This derives from the fact that the supremacy of international law over domestic law is considered to be one of the most fundamental international principles, and has long been explicitly acknowledged before the United Nations committees by governments party to such conventions, including the Syrian government. Article 27 of the Vienna Convention on the Law of Treaties stipulates that "A party may not invoke the provisions of its domestic law as justification for its failure to perform a treaty."
This study addresses the most significant weaknesses of the penal policy followed in Syria since the Baath Party came to power after the 1963 coup. It also points the way towards the radical penal and political reform in light of the international conventions on human rights which Syria has ratified and undertaken to implement. This study would undoubtedly contribute towards steering Syrian penal policy back in the right direction. This policy paper recommends that the transitional government implement the following policies:
- Adoption of the 1950 Constitution as a starting point until another one is drafted by an elected body.
- Abolition of all repressive and freedom-restricting laws and legislation, as well as the abolition of extraordinary and exceptional courts of all forms.
- Abolition of the decrees that grant absolute power to intelligence personnel.
- Placing all detention and arrest sites under judicial supervision.
- Reinforcing respect for the terms of the international conventions on human rights.
- Ratification of all international human rights conventions and associated protocols.
- Modernising laws, regulations and procedures of criminal trials to ensure prompt, impartial and diligent justice.
- Reinforcing the principle of transparency through the creation of a database containing the names of detainees, dates of their arrest, charges of which they are accused, their places of detention and their visiting dates.
- Raising awareness and disseminate a culture of human rights.
- Emphasising the principle of separation of powers and the reinforced independence of the judicial authority.
- Establishment of an office of national accountability, as part of the Public Prosecutor office, to take on the task of supporting victims who have lost a provider or relative in the Syrian Revolution and to prosecute their cases in order to attain their rights.
- Limiting, as far as possible, the use of detention and custodial penalties.